MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

Barrie obtained a favorable result for a client whose Agency charged him with numerous offenses concerning travel and relocation. According to the Agency his official duty station was Washington D.C., but he spent most of his time in Denver. This resulted in the Agency declaring many of his travel vouchers improper. The MSPB disagreed, saying that the employee's immediate supervisor approved of an arrangement whereby his official duty station would remain in Denver and he would commute to Washington, D.C. The Agency also charged the employee with a number of irregularities regarding the use of his government-issued credit card. The employee acknowledged that he used the credit card by mistake on a few occasions, but it never resulted in any liability to the Agency since he promptly paid all the credit card bills. The Agency's decision to remove the employee was mitigated to a 7-day suspension. Johnson v. Small Business Administration, (September 29, 2003).

We have received a number of inquiries from clients about what to do with old memoranda of understanding and other "side agreements" that have become outdated or were weak and ineffective from the beginning. Most MOU's and "side agreements" say nothing about how long they will remain in effect. This means that they can be changed at any time, by either party giving the other party notice and the opportunity to negotiate for a new agreement. The only exceptions to this rule would be where the Master Labor Agreement specifically provides for the duration of agreements negotiated while it is in effect or where the parties have an established practice of leaving side agreements in effect for a given period to time. We think it's time for many our Union clients to "clean house" by taking stock of all their MOU's and side agreements with management and deciding which of them ought to be renegotiated.

In Johnson v. Ganim, 20 IER Cases 554 (2^nd Cir. 2003), a Union activist was disciplined for sending a letter to management officials suggesting that they conduct a seminar about violence in the workplace and that one of the topics in the seminar should be whether Union busting could cause workplace violence. The Court ruled that the employee was speaking out on a matter of public concern and so was protected by the First Amendment.

Many clients may remember the Supreme Court's decision last year in the case of Echazabal v. Chevron Inc. The Court ruled that it was permissible for an employer to take into account whether an employee would jeopardize his own health by accepting a particular job. On remand, the Ninth Circuit has allowed Mr. Echazabal's case to continue. The Court ruled that there is a factual dispute as to whether the oil company properly determined that his exposure to certain chemicals would pose a direct threat to his health. If the oil company was wrong, said the Court, the company could be held liable under the ADA because it regarded Mr. Echazabal as a person with a disability, even if he did not have one.

In a decision similar to the Echazabal case, the Tenth Circuit ruled in Doebele v. Sprint, 14 AD Cases 1281 (10^th Cir. 2003), that a former employee should be allowed to proceed to trial on her claim that the employer wrongfully perceived her as a physical threat to other employees. The Court pointed out that there was no medical evidence supporting this belief and that the employer was most likely acting on myths and stereotypes about persons with bipolar disorder rather than an individualized assessment of this particular employee.

The decision in Brown v. Tucson, 14 AD Cases 1194 (9^th Cir. 2003), did not involve any tangible employment action against the employee. It involved only a threat, but the Court nevertheless ruled that the threat violated the ADA. The employee suffered from depression and successfully persuaded the employer to excuse her from nighttime duty as an accommodation. Later, her supervisor told her she ought to give up this accommodation or she would face demotion or forced retirement. The Court ruled that it is a violation of the ADA to threaten an employee with adverse job consequences if she will not give up a reasonable accommodation for her disability.